The Estate of Swannie Her v. Craig Hoeppner
939 F.3d 872
| 7th Cir. | 2019Background:
- Six-year-old Swannie Her drowned after being found unresponsive on the bottom of a murky, man‑made municipal swimming pond at Regner Park in West Bend, Wisconsin; she died days later.
- Pond had three zones (children's area ≤3 ft, general ≤5 ft, deep zone up to 15 ft); visibility about six inches; swim test/wristband required to enter deeper water.
- Seven certified lifeguards were on duty; lifeguard manual advised close monitoring of inexperienced swimmers and small children, but parties disputed whether that duty was mandatory or discretionary.
- Swannie had general admission (no swim test) and went underwater at an unknown time/place; no one (lifeguards or family) witnessed her submersion; a swimmer found her in Zone 2 and lifeguards began CPR; she later died.
- The Estate sued under 42 U.S.C. § 1983 (state‑created danger theory) and state tort claims; the magistrate judge granted summary judgment for defendants on the § 1983 claim and relinquished supplemental jurisdiction over state claims.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether operating a murky municipal pond is a "state‑created danger" | Pond’s murkiness and uneven topography made it a dangerous, state‑created condition | Operating a public pond with inherent risks is not an affirmative creation of danger | Not a state‑created danger; municipal operation alone insufficient |
| Whether defendants increased the danger by conduct or omissions | City failed safety measures (dredging, enforcing rules); lifeguards ignored mandatory duties, were overwhelmed | No affirmative act that turned a potential danger into an actual one; at worst negligence | No evidence of affirmative acts that increased danger; mere omissions/negligence insufficient |
| Whether defendants’ conduct "shocks the conscience" (culpable state of mind) | Lifeguards’ failures amounted to deliberate indifference or criminal recklessness | Conduct did not reach conscience‑shocking, deliberate‑indifference level | Conduct did not shock the conscience; required mens rea not shown |
| Appropriateness of summary judgment on § 1983 claim | Factual disputes over safety policies preclude summary judgment | No genuine dispute that would allow a reasonable jury to find a due‑process violation | Summary judgment affirmed; state law claims relinquished |
Key Cases Cited
- DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) (Due Process does not impose an affirmative duty to protect individuals from private harms)
- Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998) (articulates state‑created danger exception to DeShaney)
- Flint v. City of Belvidere, 791 F.3d 764 (7th Cir. 2015) (elements for state‑created danger: affirmative act, causation, conscience‑shocking conduct)
- Slade v. Bd. of Sch. Dirs. of Milwaukee, 702 F.3d 1027 (7th Cir. 2012) (drowning case rejecting due‑process claim despite negligent enhancement of risk)
- Daniels v. Williams, 474 U.S. 327 (1986) (Due Process Clause does not convert all torts into constitutional violations)
- County of Sacramento v. Lewis, 523 U.S. 833 (1998) (mere negligence is below the threshold for due‑process liability)
- Collins v. City of Harker Heights, 503 U.S. 115 (1992) (Due Process Clause does not supplant state tort law by imposing federal duties)
- Sandage v. Bd. of Comm’rs of Vanderburgh Cty., 548 F.3d 595 (7th Cir. 2008) (distinguishes endangering from failing to protect in state‑created danger analysis)